B-164281, JUNE 10, 1968, 47 COMP. GEN. 722

B-164281, JUNE 10, 1968, 47 COMP. GEN. 722

PAY - RETIRED - GRADE, RANK, ETC., AT RETIREMENT - SERVICE IN HIGHER RANK THAN AT RETIREMENT THE HOLDING IN HARRY RUSSELL MILLER V UNITED STATES, 180 CT.CL. 872, THAT A RETIRED ENLISTED MEMBER OF THE COAST GUARD IS ENTITLED UNDER 14 U.S.C. 362 TO COMPUTE HIS RETIRED PAY ON THE BASIS OF A HIGHER GRADE SATISFACTORILY HELD IN THE NAVY SHOULD NOT BE EXTENDED TO SIMILAR OR RELATED STATUTES. THE MATTER IS TOO DOUBTFUL TO WARRANT EXTENDING THE RULE OF THE CASE IN VIEW OF THE RESERVATION EXPRESSED BY THE COURT CONCERNING THE CORRECTNESS OF GENERAL ACCOUNTING OFFICE DECISIONS UNDER SECTION 511 OF THE CAREER COMPENSATION ACT THAT A RETIRED MEMBER OF ONE BRANCH OF THE UNIFORMED SERVICES WHO HELD A HIGHER GRADE IN ANOTHER BRANCH OF THE SERVICE IS NOT ENTITLED TO RETIRED PAY COMPUTED ON THE PAY OF THE HIGHER GRADE, AND THE DIFFERENCES BETWEEN THE VARIOUS STATUTES.

TO THE SECRETARY OF DEFENSE, JUNE 10, 1968:

REFERENCE IS MADE TO LETTER OF MAY 7, 1968, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO WHETHER THE COURT OF CLAIMS DECISION IN HARRY RUSSELL MILLER V UNITED STATES, 180 CT. CL. 872, IN ANY WAY AFFECTS OUR DECISION OF JULY 8, 1953, 33 COMP. GEN. 10, AS MODIFIED BY OUR DECISION OF APRIL 3, 1967, 46 COMP. GEN. 727, THAT, WITH CERTAIN EXCEPTIONS, RETIRED PAY OF A MILITARY MEMBER MAY NOT BE BASED UPON A HIGHER GRADE PREVIOUSLY HELD BY HIM IN A BRANCH OF THE ARMED FORCES OTHER THAN THAT IN WHICH SERVING AT THE TIME OF RETIREMENT. A DISCUSSION PERTAINING TO THE QUESTION IS CONTAINED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 413.

IN 33 COMP. GEN. 10 WE HELD THAT A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED OR SEPARATED FROM THE SERVICE FOR PHYSICAL DISABILITY UNDER THE PROVISIONS OF SECTION 402 (D), CH. 681, 63 STAT. 816, 37 U.S.C. 272 (D) (1952 ED.), OR SECTION 403, 63 STAT. 820, 10 U.S.C. 1212 (1958 ED.), OF THE CAREER COMPENSATION ACT OF 1949, AND WHO SATISFACTORILY HELD A HIGHER RANK, GRADE, OR RATING IN A BRANCH OF THE SERVICE OTHER THAN THAT FROM WHICH RETIRED OR SEPARATED, IS NOT ENTITLED TO RETIRED PAY OR SEVERANCE PAY COMPUTED ON THE ACTIVE DUTY PAY OF SUCH HIGHER RANK, GRADE, OR RATING.

IN FRIESTEDT V UNITED STATES, 173 CT. CL. 447 (1965), THE COURT OF CLAIMS HELD THAT AN ENLISTED MEMBER OF THE AIR FORCE RETIRED FOR DISABILITY WAS ENTITLED, WHEN ADVANCED ON THE RETIRED LIST UNDER 10 U.S.C. 1372 (2), TO THE HIGHEST GRADE (FIRST LIEUTENANT) IN WHICH HE HAD SERVED SATISFACTORILY IN THE ARMY (WHEN THE AIR CORPS WAS AN INTEGRAL PART OF THE ARMY), AND THAT THEREFORE HE WAS ENTITLED TO COMPUTE HIS RETIRED PAY ON THE PAY FOR THE GRADE OF FIRST LIEUTENANT.

WE HELD IN DECISION OF APRIL 3, 1967, 46 COMP. GEN. 727, THAT THE CONCLUSION OF THE COURT OF CLIAMS IN THE FRIESTEDT CASE, THAT A MEMBER OF THE ARMED SERVICES WHO SERVED IN A HIGHER GRADE IN A BRANCH OF THE ARMY OTHER THAN THE AIR CORPS BEFORE SEPTEMBER 26, 1947, WHEN THE AIR FORCE WAS ESTABLISHED MAY, UPON RETIRING FROM THE AIR FORCE, HAVE THAT SERVICE CONSIDERED BY THE SECRETARY OF THE AIR FORCE IN DETERMINING THE MEMBER'S GRADE UNDER 10 U.S.C. 1372, WARRANTS MODIFICATION OF OUR DECISION IN 33 COMP. GEN. 10 ONLY TO THE EXTENT STATED IN THE LATER DECISION.

IN MILLER V UNITED STATES THE COURT OF CLAIMS HELD THAT A RETIRED ENLISTED MEMBER OF THE COAST GUARD IS ENTITLED UNDER THE PROVISIONS OF 14 U.S.C. 362 TO COMPUTE HIS RETIRED PAY ON THE BASIS OF A HIGHER GRADE IN WHICH HE HAD PREVIOUSLY SERVED SATISFACTORILY IN THE NAVY. THE COMMITTEE ACTION STATES THAT IN SO HOLDING THE COURT REASONED THAT IT WOULD NOT BE UNREASONABLE TO TAKE THE POSITION THAT CONGRESS INTENDED RETIREMENT BENEFITS TO BE BASED UPON THE HIGHEST MILITARY GRADE HELD, EVEN THOUGH SUCH GRADE WAS NOT HELD IN THE SERVICE FROM WHICH RETIRED.

THE COURT STATED THAT ITS CONCLUSION IS NOT UNDERMINED BY THE FACT THAT CONGRESS HAD DECLINED ON SEVERAL OCCASIONS TO AMEND TITLE 14 SO AS TO PERMIT RETIREMENT BASED UPON THE HIGHEST GRADE HELD IN ANY SERVICE. THE COURT SAID THAT SUCH CONGRESSIONAL INACTION IN THE ABSENCE OF ANY ADMINISTRATIVE OR JUDICIAL CONSTRUCTION OF SECTION 362 CANNOT SUPPORT AN INFERENCE THAT THE STATUTE WOULD NOT PERMIT RETIREMENT BASED UPON THE HIGHEST RANK ATTAINED IN ANY SERVICE AND THAT THE ABSENCE OF POSITIVE LEGISLATIVE RESPONSE TO THE SUGGESTED AMENDMENT COULD BE ATTRIBUTED AS READILY TO A VIEW THAT THE STATUTE ALREADY SANCTIONED RETIREMENT FROM ANY SERVICE AS IT COULD TO THE VIEW THAT THE STATUTE SPEAKS ONLY TO A "SAME SERVICE" REQUIREMENT.

THE COURT FURTHER OBSERVED THAT, IN ORDER TO DETERMINE WHETHER THE MEMBER'S SERVICE IN ANOTHER BRANCH WAS "SATISFACTORY," THE SECRETARY OF THE TREASURY NEED DO NO MORE THAN ADDRESS AN INQUIRY TO THE SECRETARY OF THE SERVICE CONCERNED. THE COMMITTEE ACTION OBSERVES THAT 14 U.S.C. 362, THE STATUTE INVOLVED IN THE MILLER CASE, HAS NOT BEEN SPECIFICALLY CONSIDERED IN OUR DECISIONS AND ITS WORDING IS NOT EXACTLY THE SAME AS THAT OF THE STATUTORY PROVISIONS INVOLVED IN OUR DECISIONS, BUT CONCLUDES THAT "THE MILLER RATIONALE IS BASICALLY INCONSISTENT WITH THE REASONING OF THE COMPTROLLER GENERAL IN 33 COMP. GEN. 10 AND RELATED RULINGS.'

THE PLAINTIFF MILLER WAS RETIRED FROM THE COAST GUARD ON FEBRUARY 1, 1950, IN HIS HIGHEST COAST GUARD GRADE. HE CLAIMED ENTITLEMENT TO INCREASED RETIRED PAY BASED UPON A HIGHER GRADE HE HAD HELD MANY YEARS EARLIER IN THE UNITED STATES NAVY. HIS SUIT WAS DECIDED IN HIS FAVOR BY VIRTUE OF THE LANGUAGE CONTAINED IN THE APPLICABLE STATUTE, 14 U.S.C. 362, REFERRED TO BY THE COURT AS SETTING FORTH "* * * THE GENERAL PROPOSITION THAT THE RETIREMENT PAY OF REGULAR ENLISTED COAST GUARD PERSONNEL SHALL BE ON THE BASIS OF THE HIGHEST GRADE OR RATING WHILE ON ACTIVE DUTY.' IN THE FOLLOWING SENTENCE THE COURT RESTRICTED THE SCOPE OF ITS DECISION IN THE MILLER CASE BY SETTING FORTH THE SOLE AND BASIC POINT AT ISSUE AS FOLLOWS:

THE QUESTION PRESENTED IS WHETHER THE STATUTE PERMITS THE COMPUTATION OF RETIREMENT PAY ON THE BASIS OF A HIGHER RATING HELD IN A SERVICE OTHER THAN THAT FROM WHICH RETIRED.

THE STATUTORY PROVISIONS INVOLVED IN THE MILLER CASE, REFER ONLY TO THE "HIGHEST GRADE OR RATING HELD * * * WHILE ON ACTIVE DUTY IN WHICH, AS DETERMINED BY THE SECRETARY, HIS PERFORMANCE OF DUTY WAS SATISFACTORY.' WHILE THAT LANGUAGE IS SOMEWHAT SIMILAR TO THE LANGUAGE OF SECTION 511 OF THE CAREER COMPENSATION ACT, 37 U.S.C. 311 (1958 ED.), FOR EXAMPLE, WE CONSISTENTLY HAVE HELD IN CASES INVOLVING THAT SECTION THAT A RETIRED MEMBER OF ONE BRANCH OF THE UNIFORMED SERVICES WHO HELD A HIGHER GRADE IN ANOTHER BRANCH OF THE UNIFORMED SERVICES IS NOT ENTITLED TO RETIRED PAY COMPUTED ON THE PAY OF SUCH HIGHER GRADE. SEE 29 COMP. GEN. 437; 32 ID. 425; 33 ID. 10. COMPARE 42 ID. 244. IN FOOTNOTE 7 TO THE MILLER DECISION THE COURT NOTED THAT SECTION 362 OF THE COAST GUARD LAW DOES NOT COVER THE SAME SUBJECT MATTER AS SECTION 511 OF THE CAREER COMPENSATION ACT AND STATED THAT IT DID NOT EXPRESS AN OPINION ON THE CORRECTNESS OF THE DECISIONS OF THIS OFFICE RESPECTING SECTION 511.

IN VIEW OF THE RESERVATION OF THE COURT OF CLAIMS IN THE MILLER CASE CONCERNING THE CORRECTNESS OF OUR DECISIONS UNDER SECTION 511 OF THE CAREER COMPENSATION ACT AND THE DIFFERENCES BETWEEN THE VARIOUS STATUTES, WE THINK THAT THE MATTER IS TOO DOUBTFUL TO WARRANT OUR HOLDING THAT THE RULE IN THE MILLER CASE SHOULD BE EXTENDED TO SIMILAR OR RELATED STATUTES. THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.